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Assistant Professor in International Law and International Criminal Law at Leiden University. Specialist in most general topics that allow for reinventing the world around a good bottle of wine (preferably Bordeaux...).
contact: dovjacobs@gmail.com

Wednesday, December 8, 2010

[UPDATE: here is a link to the Review Judgment, which should be online soon]

It's a hectic day for international tribunals. The ICC held the confirmation of charges hearing for two sudanese rebels, Banda and Jerbo (see press release). More to the north, the ICTY Appeals Chamber was rendering its Review Judgment in the Sljivancanin case. Unfortunately, both took place at the same time. Because confirmation of charges take hours, I watched the ICTY hearing and will check out the confirmation of charges later tonight.

I've blogged several times on the ongoing review proceedings of the Appeals Judgment in the Sljivancanin case. Last December, the Appeals Chamber dismissed the motion for revision of the Appeals Judgment by which it had reversed one of the findings of acquital. In July this year, the Appeals Chamber granted the motion to review the Appeals Chamber Judgment based on new facts. Basically, the AC had considered, based on circumstantial evidence, that the Defendant must have been given elements in a conversation that would prove the required mens rea for aiding and abetting murder as a war crime. The new witness that came forward alleged that no such information was exchanged in that specific conversation. The following comments are based on the hearing (here is the Judgment summary).

The AC first rejected all the Prosecution submissions contesting the credibility of witness and found that the new fact did in fact prove that the required mens rea was not present for the crime under consideration. The AC therefore vacated the additionationl conviction, in order to prevent a miscarriage of justice. The AC then quashed the sentence of 17 years imposed in the Appeals Judgment, reducing it to 10 years. There is a dissenting opinion of Judge Pocar (probably calling for remanding the case to the trial chamber for sentencing...) and separate opinions from judges Gunay and Meron.

The first thing to point out, which is already notable in itself for international tribunals, is that everything went as planned. No "however" coming at a late stage of the judgment to justify not taking into account the new evidence, no procedural sidestep to justify a longer prison sentence. All in a all, a simple and logical judgment.

Hearing it, I couldn't help reflect once more on the mess this procedure turned out to be, even if the miscarriage of justice was avoided in the end, because of the actions of the AC. As I pointed out in previous blogs, we have just witnessed the compound effect of what are, in my opinion, debatable legal choices. 1) I don't think that the AC should be allowed to reverse acquittals 2) if it is allowed to do so, it should not be allowed to "re-judge" the case, and it should be remanded to the trial chamber which is the trier of facts and 3) we have clearly seen the limits of the use of "circumstantial evidence" and "reasonable inferrence" ; indeed, in effect we just witnessed a de facto reversal of the presumption of innocence and corresponding burden of proof, with the AC making a finding based on nothing, and the Defendant having to provide evidence to prove his innocence...

One last point is the question of sentencing. It seems to be such an arbitrary procedure. The Presiding judge clearly states that the sentence for the torture conviction took into account the additional murder conviction, thus justifying today's reduction. But we have two different crimes and I believe there shouldn't be such a link between the two sentences. It's about time, as I've said before, that we stop pretending that there is no hierarchy in international crimes, which in effect creates arbitrariness, and call for a clear scale of sentences in relation to each crime, as any mature system of criminal law should contain.
[UPDATE: There is of course the issue of the powers of the AC itself to increase a sentence imposed by the Trial Chamber. As pointed out by Judge Pocar in his (consistent) dissent on this issue, it is contrary to fundamental human rights for the AC to have this power, because there is no appeal of the new sentence by the Defendant. He would have therefore confirmed the original 5 year sentence, without any increase.]

Tuesday, December 7, 2010

The ICC has been very visibly active in the past week on a variety of issues. Each one could warrant a separate post, but for lack of time, I thought I'd share some random thoughts in one post.

The first issue is the request for cooperation put to the Central African Republic last week in light of the planned visit of Omar Bashir to the country. I've blogged before on the question of whether States have an automatic obligation under the Statute to give effect to an arrest warrant. I believe that they don't, and that there should be a specific additional request to give rise to such an obligation. In the comments to that post I also wondered whether the general request for cooperation to all State parties was in fact in conformity with the Statute:

I'd still have one question on the use of article 89 by the Court in this wholesale way. 89(1) mentions a possibility to issue a request to "any State on the territory of which that person may be found", rather than just "any State". If the second part of the sentence is to have any legal meaning, it can't just be all the countries in the world preemptively... Shouldn't there be some reasonable indication of the presence of the accused on the territory of a State as a condition of the issuance of the request?

This applies, in my opinion, to the specific request put to CAR. Indeed, I find that the decision is unclear as to what the exact legal basis for the request is. It refers to articles 86, 89 and 97, without specifying what specific provision it relies on to request cooperation from a State on whose territory a person might travel. But I suppose I'm just being picky here...

The second issue relates to the annoucement from the OTP that they have opened a preliminary investigation into North Korea. As reported by Xavier over at International Jurist, Professor Schabas, and Kevin John Heller, this raises interesting questions both politically and legally. I would tend to agree with KJH that it seems like a very premature announcement, in light of how recent the events are. I also doubt that the gravity threshold would be met. In terms of PR, it also marks a recent trend by the OTP in communicating much more on his work compared to a few years ago. Indeed, it took some years before the public was made aware of the scope of preliminary investigations, and we only saw two letters (Irak and Venezuela) where the OTP actually explained how he conducted his work in this very grey area of the proceedings.

The last issue relates to Ivory Coast. Deputy-Prosecutor Bensouda asked "political leaders to call on their supporters and fellow citizens to show restraint and avoid unrest". I find this statement ironic in its underlying assumption that the ICC can foster peace, given that Ivory Coast made a declaration under 12(3), recognising the Court's jurisdiction in April 2003, following the very serious unrest that took place at the end of 2002, without the OTP doing anything (visible). I'm also not entirely convinced that, as a judicial body, it is the ICC's role, and more particularly the OTP's one, to make such warnings. But I suppose the proponents of "positive complementarity" would disagree with me...
A point of interest is that the communication by Bensouda assumes that the 12(3) declaration still stands today. It certainly seems the case when you read it (in French), because it does say that it is for an "open-ended period". But I find the langage used ambiguous because it refers to the events of september 2002, rather than any crime committed on the territory from that date. But I suppose the interpretation can go both ways and that Ivory Coast should have done a better job on the drafting if it wanted to avoid any ambiguity.

A couple of concluding points on the general impression that transpires from the three issues I considered briefly. I have the impression that the ICC is in a PR frenzy where it might be biting off more that it can chew. The Court is already struggling to conclude its first trial and has only just started its second one [UPDATE: as pointed out by a careful reader, Bemba is actually the 3rd trial, not the second. I forgot about Katanga and Chui.]. With the institution failing in its judicial function, one has to wonder whether it is wise for it to multiply its interventions in the political area (Ivory Coast) and into bordeline cases such as the North Korean one. Maybe I am not ambitious enough for the Court, but I believe that it should be more cautious at this (still) early stage of its existence.